A Supreme Court judge has agreed that a mandatory High Court order requiring State action in proceedings involving minors went beyond the constitutional role of the courts.
Mr Justice Francis D Murphy, delivering judgment on December 17, 2001, endorsed Chief Justice Keane's conclusion that the order made by Mr Justice Kelly on February 25, 2000 was an impermissible intrusion into functions assigned to other organs of State.
The appeal involved nine anonymised minor applicants and a number of State respondents, including education and health ministers and the Eastern Health Board.
Murphy J went further than the Chief Justice. He questioned whether the constitutional right relied upon to justify the mandatory order existed in the first place.
He said that, apart from the Constitution's express provisions dealing with education, there was no express provision enforceable by the courts requiring the State to provide accommodation, medical treatment, welfare or other socio-economic benefits to citizens.
The judge examined earlier decisions dealing with children's rights, bodily integrity and Article 42.5, which allows the State in exceptional circumstances to supply the place of parents who fail in their duties for physical or moral reasons.
He noted that previous judgments had supported a broad interpretation of the State's obligations towards children, including the High Court decision in FN v Minister for Education. However, he questioned how far those duties extended and whether accommodation, medical care and nurture could properly be treated as constitutional educational rights.
Murphy J said desirable welfare provision should be created and funded through legislation. He agreed with an earlier judicial view that courts were poorly suited to deciding between competing claims on national resources, describing that task as essentially one for the Oireachtas.
The judgment does not set out the Supreme Court's formal final orders, but Murphy J expressly agreed that the High Court judge was not entitled to make the mandatory order in question.